State v. WeaverState v. Weaver
ELLINGTON, J.
¶ 1 Oliver Weaver raped and imprеgnated a 13 year old girl. He was convicted of second degree rape and second degree rape of a child with the consequence of impregnating a minor. In the unpublished portion of this opinion, we uphold the verdict аnd reject two of Weaver‘s challenges to his sentence. In the published portion of this opinion, we reject Weaver‘s third challenge to his sentence, disagree with a recent decision of Division II of this court, and hold that the term “prеsentence reports” in
BACKGROUND
¶ 2 Oliver Weaver, a man in his 40s with a wife and child, operated a used car lot. In October 2002, he called 13 year old R.T. and her cousin over as they walked past the lot, and asked them if they wanted a job washing cars and cleaning his house. R.T., who had never met Weaver before, accepted his offer and began working for him a few afternoons a week. Coincidentally, R.T.‘s mother and Weaver discoverеd they knew each other from about 25 years before.
¶ 3 One afternoon in early December 2002, R.T. was cleaning Weaver‘s house. Weaver approached R.T. from behind and told her if she did not do as he wished, he would kill her. He then violently raрed her for somewhere between 15 and 45 minutes. Weaver had a weapon, which R.T. thought was a bb gun.
¶ 4 R.T. was frightened by Weaver‘s threats, and did not report the rape. She worked at Weaver‘s home a few times over the next several weeks because her mother needed money, but in January, she told her mother she did not want to work there anymore. In February 2003, afraid she was pregnant, R.T. told a school friend what Weaver had done. The friend informed a school security guard, who called police.
¶ 5 R.T.‘s doctor confirmed she was pregnant. On the advice of her mother and doctor, she had an abortion. A fetal tissue sample was collected, and the State‘s DNA expert calculated a one in 240 million probability that Weaver was not the father. According to the expert, a probability of merely one in 1,000 that a donor is not the father is a “very strong indication” of paternity.1
¶ 6 Following trial, Weaver was convicted by a jury of rape of a child in the secоnd degree, and rape in the second degree with the consequence of impregnating a child.
DISCUSSION
¶ 7 Weaver challenges his offender score, contending the State failed to prove that his prior burglary convictions had not “washed out.”2 When an offender with a previous class B felony has spent 10 consecutive years in the community without any subsequent felony or misdemeanor convictions, the prior felony washes out and is not considered in calculating the offender score on a new offense.3 The State alleged in its presentence statement of criminal history that Weaver was convicted of two misdemeanors during the 10 years following his release on the burglaries. Weaver did not object to the Statе‘s allegation.
¶ 9 If a defendant disputes facts material to the sentence, the State must prove the disputed facts by a preрonderance of the evidence,4 including criminal history.5 Under
(2) In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to
RCW 9.94A.537 . Acknowledgement includes not objecting to information stated in the presentence reports.6
¶ 10 In its presentence statement, the State submitted a criminal history sheet titled “Appendix B to Plea Agreement/Prosecutor‘s Understanding of Defendant‘s Criminal History.”7 Weaver was convicted of burglary in 1981 and 1985. The sentence for the second offense was eight months. He was thereafter convicted of misdemeanors in 1987, 1988, 1993, and 1996. The misdemeanors prevented the burglaries from washing out.
¶ 11 At sentencing, the principal issue was whether Weaver should receive an exceptional sentence. The offender score nonetheless had to be calculated. The prosecutor referred to the “two points” stemming from the burglary convictions.8 Weaver made no objection to the State‘s presentence report, to the prosecutor‘s reference to the burglaries or to the court‘s calculation of his offender score. Weaver now contends his failure to object was not an “acknowledgment,” because the State‘s sentencing submission was not a presentence report under
¶ 12 When we interpret statutes, we must discern and implement the intent of the legislature.9 We begin with the plain language and its ordinary meaning.10 When the plain language is unambiguous, the legislative intent is apparent.11 We examine each рrovision in relation to other provisions and seek a consistent construction of the whole.12
¶ 13 We first address a recent decision by Division II, State v. Mendoza.13 The court there held that for purposes of
¶ 14 The Mendoza court also relied upon State v. Lopez.18 There, Lopez objected to the prior convictions alleged by the State, but the court considered them anyway. The State conceded error. The issue for the Supreme Court was whether, on remand, the State should be entitled to introduce new proof, or would be held to the record of the original sentencing hearing. The Court held the State would not have a second opportunity to create its record.
¶ 15 Relying on these cases and others, the Mendoza court concluded that no authority existed providing that anything other than a report ordered from DOC could constitute a presеntence report.
¶ 16 We respectfully disagree. Ford, Lopez, and the other cases cited in Mendoza all involve something beyond the mere fact of a conviction. Nothing in those cases, in our view, addresses the question presented here and in Mendoza. We look, instead, to the language of the statutes, and draw a different сonclusion.
¶ 17
In addition, thе court shall, at the time of plea or conviction, order the department [DOC] to complete a presentence report before imposing a sentence upon a defendant who has been convicted of a fеlony sexual offense. . . . If the court determines that the defendant may be a mentally ill person[,] . . . the court shall order the department to complete a presentence report before imposing a sentence.19
The same statute itemizes other information to be considered at sentencing: “The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history.”20
¶ 18 This language is plain. First, the term “рresentence reports” is plural, in contrast to the singular “risk assessment report,” and therefore necessarily contemplates more than one source. Second, the term “presentence reports” includes, at the leаst, any victim impact statement and any statement of criminal history. DOC does not prepare victim impact statements, so it is difficult to see how a DOC report can be the only authorized presentence report. Further, criminal history is defined by statute as “the list of a defendant‘s prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere.”21 Nothing in that definition or in the acknowledgment statute suggests that the only source of a criminal history is DOC. Indeed, given the narrow category of casеs in which DOC now prepares presentence reports,22 we strongly doubt the legislature intended any such limitation. While the court rules permit judges to request presentence reports from
¶ 19 Nor does this interpretation conflict with due process. A criminal sentence must have some basis in the recоrd. The State‘s presentence statement is not the meanderings of a stranger to the case, it is part of the record. A defendant can put the State to its affirmative burden of proof merely by objecting either before or during the sentencing hearing. Absent objection, the facts are in the record, and the record satisfies due process.
¶ 20 The purpose of the acknowledgement statute is to focus time and effort on those occasions where the facts аre disputed. Limiting the definition of presentence reports contravenes this purpose, and we see nothing in the statute to support the limitation.
¶ 21 Recent Washington cases support our interpretation. In State v. Grayson,24 the court, discussing
¶ 22 Weaver failed to object, and thereby acknоwledged his criminal history. There was no error, and we affirm.
¶ 23 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with
AGID, DWYER, JJ, concur.